Committee vote Tuesday on Kagan court nomination

by Mark Sherman | AP

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Elena Kagan faces the first vote on her nomination to the Supreme Court before a Senate panel dominated by Democrats who are all but certain to support her. The only real question is whether she will get any Republican votes.

As the Senate Judiciary Committee met Tuesday, Sen. Jeff Sessions, the panel's top GOP member, said he would oppose Kagan, saying she has placed her politics above the law, lacks experience and has activist judicial heroes.

The Alabaman's announcement was no surprise, and most Republicans are expected to join him in voting "no" on President Barack Obama's nominee to succeed retiring Justice John Paul Stevens.

Still, a handful of GOP senators might back her, and Democrats have more than enough votes to confirm her.

The committee met Tuesday to take up Kagan's nomination after a week's delay at the request of Republican lawmakers. Democrats hold a 12-7 advantage on the panel.

Kagan, a 50-year-old New York native, has served as Obama's top Supreme Court lawyer since last year. Stevens retired in June after more than 34 years on the court.

So far, no Democrat has announced opposition to Kagan and no Republican has announced support. Sen. Lindsey Graham, R-S.C., is considered the most likely Republican on the Judiciary panel to vote for Kagan's confirmation.

Sessions offered extensive criticism of Kagan on Monday that left little doubt he would oppose her.

"I know that our nominee was articulate and had good humor and many thought she did very well with her testimony. I was not so impressed," Sessions said on the Senate floor. His remarks dealt mainly with Kagan's opposition to the federal "don't ask, don't tell" law on gays in the military.

Democrats hope to confirm Kagan before the Senate's August recess, well in time for the court term that begins in October.

Also Monday, Kagan responded to GOP questions that she would weigh stepping aside from hearing high court challenges to the new health care law on a case-by-case basis.

She was replying to a list of questions from committee Republicans about her involvement as solicitor general in defending the health law.

Kagan, Obama's second Supreme Court nominee, was solicitor general while the health law was being passed and as states sued the federal government in March to challenge its constitutionality.

She told Republicans in written responses to 13 questions that she had no involvement in developing the government's response to the lawsuit and never was asked her views or offered them.

She said she attended at least one meeting where the litigation was briefly mentioned, and the Justice Department filed a number of documents in the case during her tenure, but said she had no firsthand knowledge of any of the filings.

"I never served as counsel of record nor played any substantial role" in the case, Kagan wrote. "Therefore, I would consider recusal on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics."

Republicans suggested in their questions that any involvement at all with the health care litigation should induce Kagan to recuse herself to avoid any appearance of impropriety.